Objectives of the course
A lawyer, whether academic or professional, is expected to be
competent to analyse and evaluate the legal process from a broader juristic
perspective. Hence a compulsory paper on Judicial Process is essential in the
LL.M. curriculum. The objective of this paper is to study the nature of
judicial process as an instrument of social ordering. It is intended to
highlight the role of court as policy maker, participant in the power process
and as an instrument of social change. This paper further intends to expose
the intricacies of judicial creativity and the judicial tools and techniques
employed in the process. Since the ultimate aim of any legal process or
system is pursuit of justice, a systematic study of the concept of justice and
its various theoretical foundations is required. This paper, therefore, intends
to familiarise the students with various theories, different aspects and
alternative ways, of attaining justice.
The following syllabus prepared with the above perspective will
spread over a period of one year.
1. Nature of judicial process
1.1 Judicial process as an instrument of social ordering.
1.2 Judicial process and creativity in law common law model –
Legal Reasoning and growth of law change and stability.
1.3 The tools and techniques of judicial creativity and precedent.
1.4 Legal development and creativity through legal reasoning under
statutory and codified systems.
2. Special Dimensions of Judicial Process in
2.1 Notions of Judicial review.
2.2 'Role' in constitutional adjudication various theories of judicial
2.3 Tools and techniques in policy making and creativity in
2.4 Varieties of judicial and juristic activism.
2.5 Problems of accountability and judicial law making.
3. Judicial Process in India.
3.1 Indian debate on the role of judges and on the notion of judicial
3.2 The "independence" of judiciary and the "political" nature of
3.3 Judicial activism and creativity of the Supreme Court the tools
and techniques of creativity.
3.4 Judicial process in pursuit of constitutional goals and values –
new dimensions of judicial activism and structural challenges.
3.5 Institutional liability of courts and judicial activism scope and
4. The Concept of Justice.
4.1 The concept of justice or Dharma in Indian thought
4.2 Dharma as the foundation of legal ordering in Indian thought.
4.3 The concept and various theories of justice in the western
4.4 Various theoretical bases of justice: the liberal contractual
tradition, the liberal utilitarian tradition and the liberal moral
5. Relation between Law and Justice
5.1 Equivalence Theories Justice as nothing more than the
positive law of the stronger class.
5.2 Dependency theories For its realization justice depends on
law, but justice is not the same as law.
5.3 The independence of justice theories means to end
relationship of law and justice The relationship in the context
of the Indian constitutional ordering.
5.4 Analysis of selected of the Supreme Court where judicial
process can be seen as influenced by theories of justice.